Citation Nr: 0122222
Decision Date: 09/10/01 Archive Date: 09/19/01
DOCKET NO. 00-18 824 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUE
1. Entitlement to service connection for headaches due to an
undiagnosed illness.
2. Entitlement to service connection for joint pain due to
an undiagnosed illness.
3. Entitlement to service connection for chest and abdominal
pain due to an undiagnosed illness.
4. Entitlement to service connection for fatigue due to an
undiagnosed illness.
5. Entitlement to service connection for a nervous condition
with depressed mood due to an undiagnosed illness.
6. Entitlement to service connection for memory loss and
loss of concentration due to an undiagnosed illness.
7. Entitlement to service connection for insomnia due to
undiagnosed illness.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
K. J. Loring, Counsel
INTRODUCTION
The veteran had active military service from August 1960 to
July 1964, from January 1965 to December 1967, and from
September 1990 to April 1991.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a May 1999 rating decision by the
Winston-Salem, North Carolina, Regional Office (RO) of the
Department of Veterans Affairs (VA). A notice of
disagreement was received in May 1999, a statement of the
case was issued in May 2000, and a substantive appeal was
received in July 2000. The veteran's claim arises from his
service in the Persian Gulf from September 1990 to April
1991.
The issue of service connection for erectile dysfunction and
impotence due to undiagnosed illness is the subject of the
Remand portion of this decision.
FINDINGS OF FACT
1. The veteran had active military service in the Southwest
Asia theater of operations from September 1990 to April 1991.
2. The veteran's headaches were diagnosed to be of
tension/vascular origin; there is no objective evidence of
disability manifested by headaches which cannot be attributed
to a known clinical diagnosis.
3. There is no medical evidence, and there are no objective
signs and symptoms of chronic disability manifested by joint
pain, which is attributable to an undiagnosed illness as the
result of service in the Persian Gulf.
4. There is no medical evidence, and there are no objective
signs and symptoms of chronic disability manifested by chest
or abdominal pain, which is attributable to an undiagnosed
illness as the result of service in the Persian Gulf.
5. There is no medical evidence, and there are no objective
signs and symptoms of chronic disability manifested by
fatigue which is attributable to an undiagnosed illness as
the result of service in the Persian Gulf.
6. The veteran was diagnosed as having a mild anxiety
disorder; there is no medical evidence, and there are no
objective signs and symptoms of chronic disability manifested
by nervousness with depressed mood, which are attributable to
an undiagnosed illness as the result of service in the
Persian Gulf.
7. The veteran was diagnosed as having mild memory loss;
there is no medical evidence, and there are no objective
signs and symptoms of chronic disability manifested by memory
loss, which is attributable to an undiagnosed illness as the
result of service in the Persian Gulf.
8. There is no medical evidence, and there are no objective
signs and symptoms of chronic disability manifested by loss
of concentration which is attributable to an undiagnosed
illness as the result of service in the Persian Gulf.
9. There is no medical evidence, and there are no objective
signs and symptoms of chronic disability manifested by
insomnia which is attributable to an undiagnosed illness as
the result of service in the Persian Gulf.
CONCLUSION OF LAW
The claims of entitlement to service connection for
headaches, joint pain, chest and abdominal pain, fatigue, a
nervous condition with depressed mood, memory loss and loss
of concentration, and insomnia, all as chronic disabilities
resulting from undiagnosed illness, are denied. 38 U.S.C.A.
§ 1117(a) (2000), 5107(a) (West 1991 & Supp. 1999), Veterans
Claims Assistance Act, Pub. L. No. 106-475, 114 Stat. 2096
(2000) (as codified at 38 U.S.C. § 5107 (West Supp. 2001); 38
C.F.R.
§§ 3.303, 3.317 (2000), 66 Fed. Reg. 45,620, 45,630-32
(August 29, 2001) (to be codified at 38 C.F.R. §§ 3.102,
3.156(a), 3.159 and 3.326).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
During the pendency of the veteran's appeal, but after the
case was last adjudicated by the RO, the Veterans' Claims
Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat.
2096 (2000), was signed into law. This legislation is
codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106,
5107, 5126 (West Supp. 2001). It essentially eliminates the
requirement that a claimant submit evidence of a well-
grounded claim, and provides that VA will assist a claimant
in obtaining evidence necessary to substantiate a claim, but
is not required to provide assistance to a claimant if there
is no reasonable possibility that such assistance would aid
in substantiating the claim. It also includes new
notification provisions. Specifically, it requires VA to
notify the claimant and the claimant's representative, if
any, of any information, and any medical or lay evidence, not
previously provided to the Secretary that is necessary to
substantiate the claim. As part of the notice, VA is to
specifically inform the claimant of which portion, if any, of
the evidence is to be provided by the claimant and which
part, if any, VA will attempt to obtain on behalf of the
claimant.
Regulations implementing the VCAA (codified at
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126
(West Supp. 2001)), are now published at 66 Fed. Reg. 45,620,
45,630-32 (August 29, 2001) (to be codified at
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326). Except as
specifically noted, the new regulations are effective
November 9, 2000.
38 U.S.C.A. § 5103(a) (West Supp. 2001) provides that upon
receipt of a complete or substantially complete application,
the Secretary shall notify the claimant and the claimant's
representative, if any, of any information, and any medical
or lay evidence, not previously provided to the Secretary
that is necessary to substantiate the claim. As part of that
notice, the Secretary shall indicate which portion of that
information and evidence, if any, is to be provided by the
claimant and which portion, if any, the Secretary, in
accordance with section 5103A of this title and any other
applicable provisions of law, will attempt to obtain on
behalf of the claimant. 38 U.S.C.A. § 5103(b)(1) (West Supp.
2001) provides that in the case of information or evidence
that the claimant is notified under subsection (a) is to be
provided by the claimant, if such information or evidence is
not received by the Secretary within one year from the date
of such notification, no benefit may be paid or furnished by
reason of the claimant's application. See 66 Fed. Reg.
45,620, 45,630-32 (August 29, 2001) (to be codified at 38
C.F.R. § 3.159(b)(1), (e)).
38 U.S.C.A. § 5103A (West Supp. 2001) pertains to the duty to
assist. 38 U.S.C.A. § 5103A(a)(1) (West Supp. 2001)
generally provides that the Secretary shall make reasonable
efforts to assist a claimant in obtaining evidence necessary
to substantiate the claimant's claim for a benefit under a
law administered by the Secretary. 38 U.S.C.A. § 5103A(a)(2)
(West Supp. 2001) provides that the Secretary is not required
to provide assistance to a claimant under this section if no
reasonable possibility exists that such assistance would aid
in substantiating the claim. Such are implemented at
66 Fed. Reg. 45,620, 45,630-31 (August 29, 2001) (to be
codified at 38 C.F.R. § 3.159(c), (d)).
Specific guidelines for obtaining service records, records in
the custody of a Federal agency, and records not in the
custody of a Federal agency; guidelines for notifying the
claimant when records are unavailable; and, guidelines as to
when a VA examination is required are found at 66 Fed. Reg.
45,620, 45,630-32 (August 29, 2001) (to be codified at
38 C.F.R. § 3.159(c)(1-4), (d), (e)). See also
38 U.S.C.A. § 5103A(a-d) (West Supp. 2001). 39 C.F.R. §
3.159 is revised in its entirety and now includes definitions
such as what is considered to be competent lay and medical
evidence and what is considered to be a substantially
complete application. 66 Fed. Reg. 45,620, 45,630
(August 29, 2001) (to be codified at 38 C.F.R. § 3.159(a)(1)-
(3)).
The implementing regulations also remove references to "well
grounded" claims found in the former regulations, effective
November 9, 2000. See 66 Fed. Reg. 45,620, 45,630 (August
29, 2001) (to be codified at 38 C.F.R. § 3.102) and
66 Fed. Reg. 45,620, 45,632 (August 29, 2001) (to be codified
at 38 C.F.R. § 3.326).
In Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991), the
Court of Appeals for Veterans Claims (Court) held that where
a law or regulation changes after a claim has been filed or
reopened but before the administrative or judicial appeal
process has been concluded, the version most favorable to the
veteran should and will apply unless Congress provides
otherwise or permits the Secretary to do otherwise. In
Bernard v. Brown, the Court held that when the Board
addresses in its decision a question that had not been
addressed by the RO, it must consider whether the claimant
has been given adequate notice of the need to submit evidence
or argument on that question and an opportunity to submit
such evidence and argument and to address that question at a
hearing, and, if not, whether the claimant has been
prejudiced thereby. Bernard, 4 Vet. App. 384, 392-94 (1993).
The Board finds that the veteran is not prejudiced by its
consideration of the claims addressed pursuant to this new
legislation and implementing regulations. The VA has already
met all notice and duty to assist obligations to the veteran
under the new law, to include as delineated under the newly
promulgated implementing regulations. In essence, the
veteran in this case has been notified as to the laws and
regulations governing entitlement to the benefits sought, and
has, by information letters, rating actions, the statement of
the case and supplemental statements of the case, been
advised of the evidence considered in connection with his
appeal, and the evidence potentially probative of the claim
throughout the procedural course of the claims process. In
particular, the rating decision of May 1999, and the
Statement of the Case, issued in May 2000, informed the
veteran that he had failed to submit objective evidence of
chronic disability resulting from undiagnosed illness. This
should have put him on notice of the type of evidence needed
to support his claim. Importantly, in December 1998, the
veteran was sent a detailed letter advising him of the type
of evidence needed to substantiate his claim. The veteran
was also evaluated through the Persian Gulf Registry and he
was afforded two VA examinations, to include a VA Persian
Gulf protocol examination. Also, the RO has attempted to
associate records identified by the veteran with the claims
file or has notified him as to the unavailability of any
identified records not associated with the claims file. The
claims file also contains sufficient medical evidence, such
that further examination is not necessary. The veteran has
offered argument as to the merits of his claims and has
identified no further evidence pertinent to the appeal.
For the reasons set out above, the veteran will not be
prejudiced as a result of the Board deciding the claims
addressed without first affording the RO an opportunity to
consider the claims anew in light of the newly published
regulations found at 66 Fed. Reg. 45,620, 45,630-32 (August
29, 2001) (to be codified at 38 C.F.R. §§ 3.102, 3.156(a),
3.159 and 3.326), or without first affording the veteran an
opportunity to respond specifically to the new regulatory
language. A remand for adjudication by the RO of the issues
decided by the Board would thus serve only to further delay
resolution of these claims. See Soyini v. Derwinski, 1 Vet.
App. 540, 546 (1991) (strict adherence to requirements in the
law does not dictate an unquestioning, blind adherence in the
face of overwhelming evidence in support of the result in a
particular case; such adherence would result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(remands which would only result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the
veteran are to be avoided).
I. Factual Background
The record reflects that the veteran served in Southwest Asia
from September 1990 to April 1991. His military occupational
specialty (MOS) was as a tactical communication chief. He
was also assigned to military police. His service medical
records reflect injury to his right arm, and his left lower
leg, but no evidence of complaints or clinical findings with
regard to the issues on appeal. Moreover, the veteran has
not alleged, nor does the record indicate, that any of his
claimed disabilities had their onset during service in
Southwest Asia. Rather, the veteran maintains that his
disabilities are the result of undiagnosed illnesses that
have become manifest to a degree of 10 percent or more within
the specific time period designated subsequent to separation.
38 C.F.R. § 3.317(a)(1)(i).
The veteran was afforded a VA examination in October 1994
specific to his complaints regarding service in the Persian
Gulf. The neuropsychiatric examination report reflected the
veteran's report of headaches since January 1992, which
occurred about every ten days and lasted up to 2 days. The
headaches were in either the right or left frontal area, and
resulted in a dull, steady pain. There was no known
aggravant or reliever. The veteran also reported episodes of
anxiety that lasted up to a day. The episodes were not
unduly severe, but they did cause tenseness. The veteran was
taking no medication for this, nor had he ever sought
therapy. He reported that the anxiety was relieved somewhat
by exercise.
The physical examination revealed normal station and gait, as
well as normal cranial nerves II-XII. Trapezii and
sternocleidomastoid strength was normal. There was no motor
system asymmetry, involuntary movement, weakness, or atrophy.
Muscle tone was within normal limits, and deep tendon
reflexes were symmetrical and normal active. Pain, sensory
tracts, and coordination were intact.
On mental status evaluation, the veteran was alert and
cooperative. There was no looseness of associations or
flight of ideas, and no bizarre motor movements or tics. His
mood was calm and his affect appropriate with no delusions,
hallucinations, ideas of reference, or suspiciousness. He
was fully oriented and memory for both recent and remote was
good. Insight and judgment appeared to be adequate as did
his intellectual capacity. The examiner reported a diagnosis
of headaches with no neurological sequelae, and noted that no
psychiatric disorder was found.
The general medical VA examination noted that while the
veteran was serving in Southwest Asia, he was not exposed to
oil well fires or smoke, but he was about two miles away when
a scud missile hit, setting off chemical alarms. The veteran
reported complaints of fatigue, nervousness, headaches and
loss of concentration since returning from the Persian Gulf.
He denied depression, increased stressors, anhedonia, sleep
disturbance or crying spells. He also denied systemic
complaints like weight loss, anorexia, cardiorespiratory,
gastrointestinal, or genitourinary complaints. He complained
of upper body pain which began when he fell and hit his neck
during active duty. (His neck injury was service-connected.)
The pain radiated to the suboccipital area and to both upper
shoulders and forearms. He denied paresthesia in the upper
extremities or fingertips. The examiner reviewed the
veteran's body systems as normal, with the exclusion of the
cervical spine, which showed crepitation with flexion and
lateral movement. Examination of both shoulders, both knees,
and both hips was normal. The examiner reported the
following diagnoses: Recurrent cervical strain with minimal
degenerative joint disease; status post puncture wound, right
forearm, no residual or disease; status post soft tissue
injury right lower extremity, no residual, or disease found.
Private medical records from a Dr. Stribling show that the
veteran was seen for prostate evaluation and erectile
impotence from December 1995 to April 1998. There was no
reference to any of the conditions claimed on appeal.
The veteran reported again for a VA Persian Gulf Health
Survey in November 1995, and he submitted a Persian Gulf
Registry questionnaire in November 1996. The veteran
reported that his fatigue had limited his daily activities to
about 30 percent of normal over the previous 6 months. He
also stated that he believed he was exposed to chemical
and/or biological agents, and that he had a reaction to the
pyridostigmine pills he took as a prophylactic to nerve gas
agents. No diagnosed disabilities were noted.
The veteran was afforded a further VA evaluation according to
Persian Gulf protocol in October 1998. The medical personnel
reported normal findings throughout with normal
electrocardiogram and normal chest X-ray. There was no
change noted since the 1994 report.
In August 1998, the veteran requested evaluation for his Gulf
War ailments in conjunction with his claim for service
connection. A VA examination was conducted in August 1999,
specific to the veteran's claims as associated with service
in Southwest Asia.
The August 1999 VA examination reflected the veteran's
complaints of headaches, joint pain all over, as well as a
dull, tight pain in his chest, and constant abdominal pain,
similar to constipation, without constipation. He reported
that he was tired all the time and struggled to get through
his work day. He was also "jittery, hyper, and tense,"
with a feeling of numbness rather than depression or sadness.
He reported that he could not focus and could not concentrate
or remember. He no longer had a problem with insomnia as he
was so tired at the end of the day, he could sleep anytime.
During the VA neurological examination, the veteran
essentially reiterated his previous complaints of headaches,
noting that there were no associated symptoms including
blurred vision, dizziness, or nausea or vomiting. The
headaches worsened with bright sunlight and noise, and
lessened in a quiet, relaxing place. He reported that he
occasionally had to leave work because of the headaches, and
he had missed 7 days from work in the past 10 months,
including 5 days due to having the flu. He also reported
occasional nervousness, despite his low stress job. The
nervousness did not prevent him from working, and there was
no particular trigger. He also noted some forgetfulness,
mainly with short term memory. He reported a lot of fatigue
but no insomnia. He reported that he did not have a lot of
depression.
The mental status evaluation revealed that the veteran was
fully oriented and alert. His speech was normal in rate and
tone with good vocabulary and good grammar. He was pleasant
and cooperative and able to carry on adequate conversations.
His speech was not pressured, and there were no
hallucinations, delusions, paranoia, or ideas of reference.
There was no depression, psychomotor retardation or anxiety
at the time of the examination. Gait was normal, he had good
movement throughout, and cranial nerves II-XII were intact.
Balance was good, and he did not stagger when he walked. The
examiner reported the following diagnoses: Mixed
tension/vascular headaches, no neurological sequela; mild
generalized anxiety disorder; no dementia, mild
forgetfulness.
The general medical examination, also conducted in August
1999, showed the same complaints. Physical examination of
the chest was normal without limitation, and the
cardiovascular system was asymptomatic. The veteran reported
a variety of feelings in his chest at times, following no
organic pattern related to the heart or pulmonary system.
The abdomen was without symptoms. Appetite and digestion
were good; the examination was normal. The veteran's
complaints of erectile dysfunction and impotence were noted
and have been considered in a previous claim. He was also
noted to have mild, benign prostatism. Examination of the
musculoskeletal system reflected a primary complaint of
disability of the neck, which has already been service-
connected. He reported exercising his knees, shoulders, and
back, which helped with strengthening. He did not have pain
sleeping on his shoulders, and there was no joint swelling.
He reported no current joint aches, but his feet sometimes
ached after standing all day. Physical examination revealed
no limitation of motion of any joints or extremities or
clinical abnormality other than the previously noted cervical
spine. Radiographs of the cervical spine showed minimal
degenerative changes of the facet joints at C3-4 on the left.
The veteran reported previous tiredness that may have been
associated with depression. He reported that the more he
worked, the more energy he had. He did not have excess
fatigue from ordinary reasonable work for a person of his
age. He was adequately functional with adequate reserve for
his job with the Forest Service. The examiner reported the
following diagnoses: Cervical degenerative joint disease,
symptomatic; normal examination of the lumbar spine; erectile
dysfunction/impotence, likely no organic basis documented;
BPH, mild, with bladder neck obstructive symptoms, mild; pes
planus bilaterally, mild, symptomatic.
II. Analysis
Generally, applicable law provides that service connection
will be granted if it is shown that the veteran suffers from
disability resulting from an injury suffered or disease
contracted in line of duty, or for aggravation of a
preexisting injury suffered or disease contracted in line of
duty, in active military service. 38 U.S.C.A. § 1110;
38 C.F.R. § 3.303.
With respect to claims based upon service during the Persian
Gulf War, 38 U.S.C.A. § 1117, authorizes VA to compensate any
Persian Gulf veteran suffering from a chronic disability
resulting from an undiagnosed illness or combination of
undiagnosed illnesses which became manifest either during
active duty in the Southwest Asia theater of operations
during the Persian Gulf War, or to a degree of 10 percent or
more within a presumptive period following service in the
Southwest Asian theater of operations during the Persian Gulf
War. To implement the Persian Gulf War Veterans' Act, VA
added the following regulations (which were amended,
effective November 2, 1994, to expand the period within which
such disabilities must become manifest to a compensable
degree in order for entitlement for compensation to be
established). The regulations are as follows:
(a)(1) Except as provided in paragraph (c) of
this section, VA shall pay compensation in
accordance with chapter 11 of title 38, United
States Code, to a Persian Gulf veteran who exhibits
objective indications of chronic disability
resulting from an illness or combination of
illnesses manifested by one or more signs or
symptoms such as those listed in paragraph (b) of
this section, provided that such disability:
(i) became manifest either during active
military, naval, or air service in the Southwest
Asia theater of operations during the Persian Gulf
War, or to a degree of 10 percent or more not later
than December 31, 2001; and
(ii) by history, physical examination, and
laboratory tests cannot be attributed to any known
clinical diagnosis.
(2) For purposes of this section, "objective
indications of chronic disability" include both
"signs," in the medical sense of objective
evidence perceptible to an examining physician, and
other, non-medical indicators that are capable of
independent verification.
(3) For purposes of this section, disabilities
that have existed for 6 months or more and
disabilities that exhibit intermittent episodes of
improvement and worsening over a 6-month period
will be considered chronic. The 6-month period of
chronicity will be measured from the earliest date
on which the pertinent evidence establishes that
the signs or symptoms of the disability first
became manifest.
(4) A chronic disability resulting from an
undiagnosed illness referred to in this section
shall be rated using evaluation criteria from part
4 of this chapter for a disease or injury in which
the functions affected, anatomical localization, or
symptomatology are similar.
(5) A disability referred to in this section
shall be considered service- connected for purposes
of all laws of the United States.
(b) For the purposes of paragraph (a)(1) of
this section, signs or symptoms which may be
manifestations of undiagnosed illness include, but
are not limited to:
(1) fatigue
(2) signs or symptoms involving skin
(3) headache
(4) muscle pain
(5) joint pain
(6) neurologic signs or symptoms
(7) neuropsychological signs or symptoms
(8) signs or symptoms involving the respiratory
system (upper or lower)
(9) sleep disturbances
(10) gastrointestinal signs or symptoms
(11) cardiovascular signs or symptoms
(12) abnormal weight loss
(13) menstrual disorders.
(c) Compensation shall not be paid under this
section:
(1) if there is affirmative evidence that an
undiagnosed illness was not incurred during active
military, naval, or air service in the Southwest
Asia theater of operations during the Persian Gulf
War; or
(2) if there is affirmative evidence that an
undiagnosed illness was caused by a supervening
condition or event that occurred between the
veteran's most recent departure from active duty in
the Southwest Asia theater of operations during the
Persian Gulf War and the onset of the illness; or
(3) if there is affirmative evidence that the
illness is the result of the veteran's own willful
misconduct or the abuse of alcohol or drugs.
(d) For purposes of this section:
(1) the term "Persian Gulf veteran" means a
veteran who served on active military, naval, or
air service in the Southwest Asia theater of
operations during the Persian Gulf War.
(2) the Southwest Asia theater of operations
includes Iraq, Kuwait, Saudi Arabia, the neutral
zone between Iraq and Saudi Arabia, Bahrain, Qatar,
the United Arab Emirates, Oman, the Gulf of Aden,
the Gulf of Oman, the Persian Gulf, the Arabian
Sea, the Red Sea, and the airspace above these
locations.
38 C.F.R. § 3.317 (2000).
As an initial matter, the Board notes that the DD Form 214
reflects that the veteran served in the Southwest Asia
theater of operations from September 1990 to April 1991.
Based on this evidence and for purposes of analysis under 38
C.F.R. § 3.317, the Board finds that the veteran had active
military service in the Southwest Asia theater of operations
during the Gulf War.
After reviewing the evidence of record, including the
veteran's report of signs and symptoms of his claimed
conditions, the Board concludes that the preponderance of the
evidence is against each of the veteran's claims for service
connection. Despite the veteran's assertions that he has an
undiagnosed illness with regard to each claimed condition,
the objective medical evidence of record does not support the
veteran's contentions. Service medical records are silent as
to any medical problems related to headaches, joint pain,
chest and abdominal pain, fatigue, a nervous condition,
memory loss or loss of concentration, or insomnia during his
tour of duty in the Persian Gulf. The veteran reported that
his disabilities surfaced only after his separation from
service.
A. Headaches
The veteran has been evaluated on several occasions for his
complaints of headaches, and in August 1999 he was diagnosed
as having tension or vascular headaches. Thus, as the
veteran's headaches have a diagnosed etiology, he has failed
to meet the criteria that his illness not be attributable to
any known clinical diagnosis by history, physical examination
and laboratory tests. Therefore, his claim for service
connection for headaches due to chronic disability as a
result of undiagnosed illness must be denied.
B. Joint Pain
The veteran's VA outpatient medical records and VA
examination reports reflect his complaints of joint pain,
particularly in his shoulders, without clinical diagnosis of
any disability involving the veteran's joints, other than the
cervical spine. As noted previously, the degenerative
disease of the cervical spine has already been service
connected. A VA examination report of October 1994 showed no
neurological or musculoskeletal defects involving the
veteran's joints. His body systems were normal. The pain
noted to be radiating from the suboccipital area to the
shoulders was referable to the cervical spine, and was
contemplated in the rating assigned for the neck injury.
Subsequent VA outpatient evaluations, including a 1995
Persian Gulf health survey, and an August 1999 VA
examination, did not indicate any disability involving the
musculoskeletal system other than the cervical spine. In
addition, the veteran reported to the VA examiner that
exercising his knees, shoulders, and back helped to
strengthen these joints. He did not report any joint aches,
and there was no limitation of motion or clinical abnormality
of the joints, other than the degenerative changes of the
cervical spine. The only evidence of record to suggest that
there is joint pain that is the result of undiagnosed
illness, is the veteran's statement. However, the
regulations require that there be objective evidence of signs
or symptoms of joint pain not attributable to a diagnosed
disability. Such objective evidence is not present. Thus,
as the veteran's complaints of joint pain have not been
confirmed by objective evidence, the claim must be denied.
C. Chest and Abdominal Pain
While there is no medical evidence of diagnosed disability
relating to the veteran's chest or abdomen, there is likewise
no objective evidence of disability in these areas. The VA
outpatient and examination reports show that the veteran's
complaints have been thoroughly evaluated. An October 1994
VA examination report reflected no abnormalities of the chest
or abdomen, and a chest X-ray and EKG performed in October
1998 were both normal. The examiner noted no change since
the 1994 VA examination. The August 1999 VA examination
report reflected the veteran's complaints of tightness in his
chest and abdominal pain, but there was no objective evidence
of signs or symptoms of such disability, and no medical
evidence of clinical abnormality. The examiner found no
organic pattern related to the heart or pulmonary system to
account for the veteran's complaints. In addition, his
abdomen was without objective evidence of disability, and the
examination was normal. Accordingly, the claim must be
denied.
D. Fatigue
The veteran reported that his fatigue began after his
separation from service. However, there is no objective
evidence of signs or symptoms of fatigue, and no medical
evidence of disability attributable to fatigue. While the
veteran reported in his November 1995 Persian Gulf Health
Survey, that fatigue limited his daily activities to about 30
percent of normal, the examination report indicated normal
findings without evidence of chronic fatigue. In addition,
the veteran's August 1999 VA examination report reflected no
evidence of excess fatigue from ordinary reasonable work for
a person of his age. He was found to be adequately
functional with adequate reserve for his job. Despite the
veteran's statement that he experienced a lot of tiredness,
he later stated that the more he worked, the more energy he
had. He also reported that his previous tiredness may have
been associated with depression. Accordingly, as there is no
objective evidence of disability associated with fatigue, the
claim must be denied.
E. Nervous Condition with Depressed Mood
The veteran has reported nervousness since his return from
the Persian Gulf, and has been found to be mildly anxious.
His VA examination of October 1994 reported no evidence of
psychiatric disorder. However, an August 1999 VA examination
report reflected his complaints of jitteriness and tenseness,
with a feeling of numbness rather than depression or sadness.
He reported that his nervousness did not prevent him from
working. Although the VA examiner found no evidence of
depression or anxiety at the time of the examination, he
reported a diagnosis of mild generalized anxiety disorder.
Thus, as the veteran's nervousness has been diagnosed as a
mild anxiety disorder, he has failed to meet the criteria
that his illness not be attributable to any known clinical
diagnosis by history, physical examination and laboratory
tests. In addition, there is no medical evidence or
objective signs or symptoms of a depressed mood as a result
of undiagnosed illness. When seen at a VA medical clinic in
August 1997, he reported occasional episodes of depressed
mood which might last a day. He commented that such episodes
were no more than most people have. Accordingly, the claim
for a nervous disorder with depressed mood must be denied.
F. Memory Loss and Loss of Concentration
The veteran has reported memory loss and loss of
concentration since his separation from service in the
Persian Gulf. However, the October 1994 VA examination
report revealed that the veteran's memory for both recent and
remote events was good. There was likewise no evidence of
disability affecting the veteran's cognition. While the
August 1999 VA examination report noted the veteran's
complaint of short-term memory forgetfulness, there was no
evidence on the mental status evaluation of psychomotor
retardation or impaired memory or concentration. While the
examiner did report a diagnosis of mild forgetfulness without
dementia, there is no objective evidence of same except for
the veteran's history. Importantly, it is noted that the
veteran works as an electronic technician, performing duties
on monitoring equipment. There is no history of any
forgetfulness affecting his job duties. As there is no
objective evidence of signs and symptoms of a chronic
disability manifested by memory loss that is due to an
undiagnosed illness, the claim must be denied.
G. Insomnia
With regard to the veteran's claim for insomnia, the Board
notes that the medical records reflect no diagnosis of
insomnia, and the August 1999 VA examination report noted
that the veteran had no problems with insomnia, as he was so
tired after work that he could sleep anytime. Thus, as there
is no evidence of a chronic disability involving insomnia,
and no evidence of objective signs and symptoms of insomnia
due to chronic disability as a result of undiagnosed illness,
the claim must be denied.
III. Summary
In reaching the foregoing conclusions, the Board considered
the veteran's statements and believes that the veteran is
sincere in his belief that the claimed disorders are related
to his Persian Gulf service. However, the preponderance of
the evidence is against a finding that the symptoms
complained of are due to a chronic disability that is the
result of an undiagnosed illness. With regard to the various
issues, there is either no supporting evidence of the claimed
symptoms or the symptoms have been attributed to known
clinically diagnosed disorders which are not shown to be
related to service. Accordingly, the claims are denied.
ORDER
Entitlement to service connection for headaches, joint pain,
chest and abdominal pain, fatigue, a nervous condition with a
depressed mood, memory loss and loss of concentration, and
insomnia, all as due to undiagnosed illness, is denied.
REMAND
By rating action of May 1999, the RO denied service
connection for erectile dysfunction/impotence. The veteran
was notified of this decision by letter dated May 12, 1999
and of his appellate rights. That same month, a notice of
disagreement was received to issues adjudicated by rating
action of May 1999, but no mention was made of erectile
dysfunction/impotence. In August 1999, the veteran was
examined by the VA during which time he mentioned erectile
dysfunction/impotence. The RO concluded that this
represented an informal claim for service connection for
erectile dysfunction/impotence as due to Gulf War undiagnosed
illness. By rating action of May 2000, service connection
for this condition was denied on a de novo basis. The
veteran was notified of this action by letter dated in June
2000 and informed that he had one year to appeal. In
February 2001, the veteran's representative raised this issue
in his written brief presentation. The Board accepts this
presentation as a timely notice of disagreement. As the
claims folder had been transferred to the Board, it was
permissible for the notice of disagreement to be filed at the
Board. In this regard, the applicable criteria provide as
follows:
Sec. 20.300 Rule 300. Place of filing Notice of Disagreement
and
Substantive Appeal.
The Notice of Disagreement and Substantive Appeal must be
filed with
the Department of Veterans Affairs office from which the
claimant
received notice of the determination being appealed unless
notice has
been received that the applicable Department of Veterans
Affairs records
have been transferred to another Department of Veterans
Affairs office.
In that case, the Notice of Disagreement or Substantive
Appeal must be
filed with the Department of Veterans Affairs office which
has assumed
jurisdiction over the applicable records.
38 C.F.R. § 20.300 (2000).
As there is a timely notice of disagreement to this issue,
the RO must issue a Supplemental Statement of the Case, and
the veteran must be afforded the opportunity of submitting a
substantive appeal if he desires the Board to address this
matter.
In reconsidering this issue, the RO is advised to consider
the VCAA as discussed above and also consider the issue of
whether this is an original or a reopened claim.
Pursuant to the provisions of 38 C.F.R. § 19.9, "[I]f further
evidence or clarification of the evidence or correction of a
procedural defect is essential for a proper appellate
decision," the Board is required to remand the case to the
agency of original jurisdiction for the necessary action.
Accordingly, as this claim has been placed in appellate
status by the filing of an NOD, the Board must remand the
claim to the RO for preparation of an SSOC as to that claim.
In view of the foregoing, the case is REMANDED to the RO for
the following:
1. The RO should contact the veteran and
ask him to provide the names and
addresses of all medical providers from
whom he has received treatment for
erectile dysfunction/impotence since
service discharge. All indicated records
should be obtained.
2. The veteran should again be advised
of the information and evidence needed to
support his claim and all needed
development should be accomplished in
accordance with the VCAA and implementing
regulations.
3. Upon completion of the requested
development, the RO should issue the
veteran a Supplemental Statement of the
Case after determining whether his
current claim is an original or a
reopened claim. The Supplemental
Statement of the Case should include
consideration of the VCAA and the
implementing regulations. The veteran
and his representative are advised of the
need to file a substantive appeal if the
Board is to address this issue. If
appropriate, the case should then be
returned to the Board for further
appellate consideration.
By this REMAND, the Board intimates no opinion either legal
or factual, as to any final determination warranted in this
case. No action is required of the veteran until he is
notified by the RO. The purpose of this REMAND is to obtain
clarifying information and to provide the veteran with due
process.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 2001) (Historical and Statutory Notes).
In addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
Iris S. Sherman
Member, Board of Veterans' Appeals